Citizen Health & Safety
President Obama's Use of His Executive Power: Facts vs. Hyperbole
by Katie Weatherford, 2/11/2014
President Obama has issued 168 executive orders since taking office in January 2009, fewer than any president in office during the past 100 years besides George H. W. Bush. Yet conservative commentators continue to complain that this president has exceeded his executive power. Challenges to the president's executive power are on the rise following his State of the Union address on Jan. 28 when he vowed to take whatever unilateral action he can to ensure our government operates in the best interests of our citizens. "Wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do," the president declared.
One of the most notable executive actions Obama unveiled in his address is a forthcoming executive order that will raise the minimum wage of federal contractors to $10.10 per hour. He also pledged to move forward on implementing his Climate Action Plan announced in June 2013, which directs the U.S. Environmental Protection Agency (EPA) to set limits on the amount of carbon dioxide emitted from new and existing power plants; the agency has already published the proposed new power plant rule. The president followed that pledge with a November 2013 executive order on preparing for the impacts of climate change.
In response, members of Congress have announced plans to file suit challenging the legality of the president's recent executive orders. But courts traditionally interpret the president's executive power broadly and have only invalidated two executive orders in the past. Instead, Congress may find that it has to enact unpopular legislation if it wants to stop the president from exercising his legal authority.
The President's Executive Toolkit
The president's executive power is derived from Article II of the U.S. Constitution. Section I, Clause I provides that "[t]he executive power shall be vested in a President of the United States of America." Section III, Clause V further states that the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States." In addition, Congress can also pass laws providing the president with executive authority.
Presidents throughout history have exercised their authority using instruments, such as executive orders, proclamations, and memorandums. These generally direct government officials and agencies in the executive branch to take a specified action. If an official does not comply, the president can remove the officer from his position. Additional reasons for presidential executive orders are: to clarify or further existing law, respond to an emergency such as a natural disaster, or to bypass congressional gridlock.
Although the president is not authorized to make laws, instruments like executive orders, when they are issued in accordance with the president's constitutional or congressionally delegated authority, may have the force and effect of law, which would require a court to take "judicial notice." But many executive orders expressly state, "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."
Judicial and Congressional Checks to Executive Power
While a president's executive power is broad, it is not without limits. The Constitution's system of checks and balances provides both the judiciary and Congress with power to override executive actions.
Throughout our nation's history, only two executive orders have been invalidated by the courts, one issued by President Harry Truman in 1952 and another issued by President Bill Clinton in 1996. In the first case, Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 (1952)), the U.S. Supreme Court heard a challenge to Truman's executive order directing the Secretary of Commerce to take possession of and operate most steel mills within the U.S. The Court upheld a lower court decision invalidating the order because it constituted executive lawmaking. Yet the case is most cited for Justice Robert Jackson's concurring opinion describing the sliding scale of executive power. According to Jackson,
- When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .
- When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .
- When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. . . .
In 1996, the D.C. Circuit invalidated Clinton's executive order prohibiting the federal government from hiring contractors to replace strikers. The court unanimously held that the executive order was invalid because it conflicted with the Supreme Court's decision in NLRB v. Mackay Radio & Telegraph Company (304 U.S. 333 (1938)).
Despite the few court cases invalidating executive orders, some members of Congress are gearing up to file suit challenging some of President Obama's recent executive orders. Rep. Tom Rice (R-SC) recently proposed a resolution, entitled Stop This Overreaching Presidency (STOP), which directs the House of Representatives to file a civil suit against the executive branch.
Among other actions, the resolution seeks to challenge the president's directive to the Department of Health and Human Services to extend health coverage that would have been terminated or cancelled as a result of provisions in the Patient Protection and Affordable Health Care Act taking effect Jan. 1, 2014.
Nor is Congress limited to challenging these actions in court. Congress has the option of enacting a law that conflicts with an executive order, effectively overriding it. However, if the president vetoed such law, Congress could override the veto only with a two-thirds majority vote, which is politically challenging. Congress could also refuse to appropriate funds for carrying out the order.
Conservative members of Congress have been lobbing over-the-top rhetoric at President Obama during his entire time in office; their outrage about his promise to use the executive power granted him by the Constitution has no basis in reality. President Obama has issued fewer executive orders than any president in the past 100 years except George H. W. Bush. Contrary to their inflamed rhetoric, the examples cited by his opponents as presidential "overreach" are squarely within the president's legal power to "take care that the laws are faithfully executed." Since the courts have traditionally interpreted the president's executive power broadly and have rarely invalidated an executive order, Congress is unlikely to win a legal challenge. Congressional efforts to introduce legislation limiting the president's power in addressing issues like climate change or improved chemical security would likely create a backlash with voters.
This article has been revised since its original publication date to reflect updated executive order numbers.
Update (2/14/2014): On Feb. 12, President Obama signed an executive order raising the minimum wage for federal contractors to $10.10, fulfilling the promise he made during his State of the Union address on Jan. 28. Just two days earlier, on Feb. 10, the president also signed an executive order changing the name of the national security staff to the national security council staff. Including these two recent actions, President Obama has issued a total of 170 executive orders since taking office. He has issued fewer executive orders than most presidents holding office in the past 100 years, with the exception of presidents George H. W. Bush (166) and Gerald Ford (169).